0720080034
07-30-2008
Reda St. Cyr,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0720080034
Agency No. 4F-945-0051-02
Hearing No. 370-AO-X2581
DECISION
Following its March 14, 2008 final action, the agency filed an appeal
with this Commission requesting that we affirm its rejection of the
relief ordered by an EEOC Administrative Judge (AJ). Complainant also
filed a cross appeal, challenging the AJ's finding of no discrimination
concerning two claims: that she was denied resources to do her job;
and that she was overly-managed on and after November 3, 2001.
Complainant, a former Postmaster at the agency's Bethel Island Post
Office, Bethel Island, California, filed a formal EEO complaint
on February 11, 2002. Therein, complainant claimed that she was
discriminated against on the bases of race (African-American), sex
(female), and in reprisal for prior protected activity when she was
denied career-enhancing opportunities, was denied resources to do her job,
and was overly-managed on and after November 3, 2001.
At the conclusion of the investigation, complainant was provided with
a copy of the report of investigation and requested a hearing before
an AJ.
Following a hearing on June 23, 24, and 25, 2003, the AJ issued a
decision on July 16, 2007. Therein, the AJ found no discrimination on
the two claims that complainant was denied resources to do her job, and
that she was overly-managed. However, the AJ found that complainant was
discriminated against when she was denied career-enhancing opportunities.
After a review of the testimony and the record in evidence, the AJ found
complainant established a link between being denied career-enhancing
opportunities and the resulting emotional distress. The AJ awarded
complainant $20,000.00 in non-pecuniary compensatory damages to compensate
her for the discrimination.
The AJ further awarded complainant back pay with benefits. Specifically,
the AJ stated that the record was unclear regarding the amount of back
pay, if any, to which complainant is entitled based upon her not having
been given a Level-20 Officer-in-Charge (OIC) assignment at the St. Helena
Post Office on or after December 14, 2001. The AJ determined that at a
minimum, there was no reason to assume that complainant would not have
accepted the St. Helena OIC assignment for which she was as qualified as
the party who was given the OIC assignment, identified as agency employee
(E1), if the assignment had been offered to complainant. The AJ further
determined that this OIC assignment would have been given to complainant,
but for the retaliation of an identified Manager, Post Office Operations
(MPOO). The AJ further determined that because E1 went directly from
his OIC assignment to become the Postmaster in St. Helena, there was no
reason to assume that complainant would not have had the same opportunity,
if complainant had initially been given the OIC assignment.
The AJ determined that in order to put complainant in the same position
she would have been but for the unlawful retaliation of MPOO, she was
entitled to back pay and benefits associated with her having been given
the St. Helena OIC assignment followed immediately thereafter by the
St. Helena Postmaster position, using the same time frames as applied
to E1. The AJ determined that the parties should meet and confer within
sixty (60) days about the specifics of the back pay calculation reach
an agreed-upon amount owed to complainant in this regard.
As for the remaining remedies, the AJ determined that complainant was
entitled to attorney's fees and costs. The AJ directed complainant's
counsel to submit her verified statement of attorney's fees and costs
for work done in the instant matter within thirty (30) days of the date
of his decision.
On January 30, 2008, the AJ issued a document titled "Memorandum Opinion
and Order on Complainant's Petition for Attorney's Fees and Costs."
Therein, the AJ awarded complainant $134,265.22 in attorney's fees and
costs ($130,511.43 in attorney's fees and $3,753.79 in costs).
On March 14, 2008, the agency issued its notice of final action, rejecting
the relief ordered by the AJ, and simultaneously filing the instant
appeal. Subsequently, complainant filed a cross appeal, challenging
the AJ's finding of no discrimination concerning her claims that she
was denied resources to do her job and that she was overly-managed on
and after November 3, 2001.
In her cross appeal, complainant argued that the AJ erred when he
determined that there was no evidence that complainant was denied
resources to do her job because similarly situated Postmasters working
under MPOO were facing similar reductions in allotted employee hours.
Complainant further argued that even though she had a 1999 settlement
agreement which required the agency to provide her an opportunity to
train and qualify as a Route Inspector, supervise a delivery operation
with 10 or more routes, and work in an OIC assignment, MPOO continued his
pattern of discrimination action against her. Specifically, complainant
stated that after an OIC assignment, when she was back under MPOO's
supervision, every assistance she requested, such as support for her
duties, was denied by MPOO.
Regarding the finding of discrimination, the Commission discerns no
basis to disturb the AJ's findings. We find that the findings of fact
are supported by substantial evidence, and that the AJ correctly applied
the appropriate regulations, policies and laws.
We find, however, that given the specific facts in this case, the AJ's
award of attorney's fees and costs in the amount of $134,265.22 should
be reduced. Title VII authorizes the award of reasonable attorney's fees,
including for an attorney's processing of a compensatory damages claim.
29 C.F.R. � 1614.501(e). To establish entitlement to attorney's fees,
complainant must first show that he or she is a prevailing party.
Buchannon Bd. and Care Home Inc. v. West Virginia Dept. of Health and
Human Resources, 532 U.S. 598 (2001). The fee award is ordinarily
determined by multiplying a reasonable number of hours expended on
the case by a reasonable hourly rate, also known as a "lodestar."
See 29 C.F.R. � 1614.501(e)(2)(ii)(B); Bernard v. Department of Veterans
Affairs, EEOC Appeal No. 01966861 (July 17, 1998). Complainant is not
only entitled to an award of time reasonably expended. It does not
always follow that the amount of time actually expended is the amount of
time reasonably expended. Elvin v. Department of Labor, EEOC Request
No. 01943425 (August 31, 1995). Counsel for the prevailing party
should make a "good faith effort to exclude from a fee request hours
that are excessive, redundant or otherwise unnecessary." See Bernard,
EEOC Appeal No. 01966861.
Here, we note that the record contains a copy of complainant's attorney's
petition fee dated August 8, 2007. Therein, the attorney requested a
total amount of $134,265.22 ($130,511.43 in attorney's fees and $3,753.79
in costs). The attorney stated that she and her staff spent 421.98
hours working on complainant's case at the hourly rate of $390.00 in
attorney's fees and $275.00/$100.00 per hour for associate attorney and
law clerk for a total of $130,511.43; and incurred legal costs in the
amount of $3,753.79. The attorney further stated that she had reduced
her fee request by 5% "across the board" to account for complainant not
having prevailed on all claims. The agency submitted its opposition
objecting to the fee petition. Specifically, the agency argued that
the fee request should be reduced by two-thirds, because complainant did
not prevail on all of her claims. The agency cited various EEOC cases
where fractionable fees have been awarded.
In his decision, the AJ concluded that complainant's attorney's hourly
rate of $390.00 was deemed reasonable for San Francisco, California.
Regarding the agency's argument that the fee request should be reduced
by two-thirds because complainant did not prevail on all of her claims,
the AJ rejected its argument by finding that all of complainant's claims
"successful or not, are related." The AJ determined that complainant's
attorney should be fully compensated for all the reasonable hours used
in pursuing the instant case; and awarded complainant a total award of
$130,511.43 in attorney's fees and costs.
After a careful review of the record, we find that the record does
not support a finding that complainant's unsuccessful claims (denied
resources to do her job and was overly-managed) were so closely
intertwined as to preclude a reduction in attorney's fees. Therefore,
we agree with the agency that the AJ's award of attorney's fees should
be reduced to reflect that complainant did not prevail on all claims.
To account for the fact that complainant succeeded on only one of three
tangentially-related claims, we find that the award of attorney's fees
should be reduced by fifty percent (50%) from what had been requested
by complainant. Therefore, we find that complainant is entitled to
$69,009.51 in attorney's fees and costs ($65,255.72 in attorney's fees
and $3,753.79 in costs).
With respect to the agency's argument that the AJ's back pay award was
remote and speculative, we find no evidence supporting the AJ's decision
that the St. Helena Postmaster assignment would have been offered to
complainant had it not been for the retaliation of MPOO. Specifically,
we note that the OIC assignment was a temporary position which was vacated
when the agency competitively selected a new Postmaster. We find that
there is no evidence in the record indicating that complainant would or
should have been selected as the Postmaster. Therefore, we find that
complainant is only entitled to back pay plus benefits during the same
period as the OIC assignment.
Finally, we note that complainant filed a cross appeal challenging
the AJ's finding of no discrimination concerning her claims that she
was denied resources to do her job and was overly-managed on and after
November 3, 2001. As noted above, we find that the evidence substantially
supports the AJ's decision and a preponderance of the record evidence
does not establish that discrimination occurred.
For the reasons set forth above, we REVERSE the agency's final action
rejecting the AJ's finding of discrimination. However, we MODIFY the
AJ's award of damages, and hereby instead award complainant the amount
of $69,009.51 in attorney's fees and costs. We REMAND this matter to
the agency to undertake these remedial measures, and other remedies,
as set forth in the ORDER below.
ORDER
The agency is ordered to take the following remedial action:
1. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall meet with complainant and her attorney about the
specifics of the back pay calculation and reach an agreed-upon amount
owed to complainant for the discriminatory action. If there is a dispute
regarding the exact amounts owed by the agency, the agency shall issue
a check to complainant for the undisputed amount within thirty (30)
calendar days of the date the agency determines the amount it believes
to be due. Complainant may petition for enforcement or clarification of
the amounts in dispute. The petition for clarification or enforcement
must be filed with the Compliance Officer, at the address referenced in
the statement entitled "Implementation of the Commission's Decision."
2. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall pay complainant, to the extent it has not already
done so, $20,000.00 for non-pecuniary compensatory damages.
3. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall tender to complainant's attorney $69,009.51 in
attorney's fees and costs.
4. The agency shall post a notice in accordance with the paragraph below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
POSTING ORDER (G0900)
The agency is ordered to post at its Bethel Island Post Office in Bethel
Island, California, copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant
in the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0408)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 30, 2008________
Date
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0720080034
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0720080034